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C. AYOTOPE SAVAGE
V.
S. O. ROTIBI
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
30TH DAY OF OCTOBER, 1944
LEX (1944) – WACA PP. 264 – 266
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OTHER CITATION(S)
2PLR/1944/22 (WACA)
(1944) X WACA PP. 264 – 266
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
BROOKE, J.
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BETWEEN:
C. AYOTOPE SAVAGE – Defendant-Appellant
AND
S. O. ROTIBI – Plaintiff-Respondent
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ORIGINATING COURT(S)/TRIBUNAL(S)
APPEAL BY DEFENDANT FROM THE JUDGMENT OF THE ENUGU-ONITSHA HIGH COURT.
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REPRESENTATION
E. J. Alex-Taylor with P. E. Nelson-Williams — for Appellant
S. B. Rhodes — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OFACTION
DEBTOR AND CREDITOR:- Claim for balance on sum lent — Evidence of Promissory Note — How treated
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PRACTICE AND PROCEDURE ISSUES
ACTION:- Limitation of action raised at Hearing without pleadings — Protectorate Courts Rules, 1934, Order XXIII — Legal effect
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CASE SUMMARY
Plaintiff by his action in 1942 claimed £336 7s., lent in 1933, plus £72 13s. 6d., balance of cash lent in 1941; there were no pleadings. At the hearing Defendant (in person) denied liability for the £336 7s., Plaintiff then produced a promissory note for it dated 15th June, 1933. When called upon Defendant, for the first time, made the defence that this note was statute-barred. The trial Judge allowed this defence to be set up and adjourned for Defendant to have counsel to argue it, but eventually held the claim for the £336 7s. was not barred. On appeal by Defendant:
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. that as the parties regarded the note of his as a promissory note and intended it to be governed by English law — a position accepted by plaintiff’s Writ allocating payments to the 1941 loan — the motion thereon was barred.
2. that as the action proceeded without pleading and Defendant had no counsel when the hearing began, the trial Judge had a discretion under the Rules of 1934 to allow the defence of limitation, to be set up when defendant was called upon after plaintiff’s case had closed.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:
The Plaintiff’s claim from the Defendant in the High Court of the Enugu-Onitsha Division was:-
“the sum of £409 0s. 6d., being various sums of money received by the Defendant on various dates as loan without interest particulars of which are as follows:-
£ s. d.
June 1933 cash given on interest-free loan … … … … … … … 336 7 0
Balance of cash remaining on … … … … … … … … … … … … … … 97 15 6
interest-free loan given in April, 1941 … … … … … … … … … … 72 13 6
£409 0 6
There were no pleadings, plaintiff’s Counsel saying that they sued on documents only and pleadings did not seem to be necessary. Defendant, who was not represented by Counsel at that hearing, then said—
“I admit £72 13s. 6d.
“Not liable for the £338 7s. 0d.”
Plaintiff then proceeded to prove his case which he did mainly relying upon Ex. “A”, a document purporting to be a Promissory Note for £336 7s., dated 16th June, 1933.
Thereupon the Defendant was called upon for his Defence and then for the first time disclosed his real defence which was-
“Claim on Ex. “A” is statute-barred.” i.e. barred by the Statute of Limitations.
The learned trial Judge allowed the Defendant to set up that Defence at that stage and granted him an adjournment to enable his Counsel to appear and argue the point of law involved. At the continued hearing Defendant was represented by Counsel who led evidence and then argument was heard from both sides and the Judge gave judgment for the plaintiff in terms of the writ with 40 guineas costs, holding that the claim was not barred by the Statute.
Against that judgment the Defendant has appealed to this Court. Appellant’s Counsel argued that, whether or not Ex. “A” was in fact a promissory note, it was clearly regarded as such by both parties, so that it was abundantly clear that both parties intended their obligations to be governed by English law, whereby the Statute of Limitations operated to bar the bringing of this action. He further pointed out that the payments made by Appellant were expressly allocated to the later loan, and that this position was accepted by the Respondent by the very terms of his writ.
In our view these arguments are unanswerable and conclusive. Indeed Respondent’s Counsel did not attempt to refute them. Instead he relied upon a submission that since the Defendant-Appellant had failed to plead the Statute when called upon for his answer to the claim at the opening of the case, he could not be allowed to set it up as a defence after the Plaintiff-Respondent’s case had closed. He took this point in the Court below.
If this were a case tried with pleadings his submission would certainly be sound, and the same would apply if both parties had been represented by Counsel when the hearing of the case began, for it has frequently been held that in this country the openings of Counsel take the place of pleadings. But in the circumstances of this case we think that it was within the discretion of the learned trial Judge, under the provisions of Order XXIII of the Protectorate Courts Rules, 1934, to allow the Defendant-Appellant to set up the plea at the time he did. Without saying that we have exercised the discretion in the same way, we think it impossible for us to say, at this stage, that the discretion was wrongly exercised, and consequently the submission made by Plaintiff-Respondent’s Counsel fails.
In the result the appeal is allowed and it is ordered that the judgment of the Court below be varied to read-
“Judgment for the Plaintiff for £72 13s. 6d., and costs assessed at 40 guineas.”
We have not varied the assessment of the costs in the Court below since it was only as an indulgence that the Defendant was allowed to set up his statutory defence at the time he did and it was this which caused the prolongation of the trial.
The Appellant is awarded costs in this Court assessed at 30 guineas.
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